Communicated on 19 October 2016

FIFTH SECTION

Application no. 52871/13 Cvijeta AŠĆERIĆ against Bosnia and Herzegovina lodged on 24 July 2013

STATEMENT OF FACTS

The applicant, Ms Cvijeta Ašćerić , is a citizen of Bosnia and Herzegovina, who was born in 1958 and lives in Vlasenica . She is represented before the Court by Ms R. Plavšić , a lawyer practising in Banja Luka.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Introduction

On 29 February 2004 the applicant and three of her colleagues, M.K., M.A. and M.D., were dismissed from their posts at the Vlasenica Office of the Ministry for Refugees and Displaced Persons of the Republika Srpska (“the Ministry”), following a decision to close the Vlasenica Office.

At about the same time in 2004 they all initiated separate labour disputes before the Banja Luka Court of First Instance (“the Court of First Instance”) seeking reinstatement and compensation for unlawful dismissal.

2. The applicant ’ s labour dispute

On an unspecified date in 2004 the applicant filed a civil action against the Ministry seeking reinstatement, compensation for unlawful dismissal and payment of all work-related benefits.

On 23 November 2007 the Court of First Instance ruled in her favour. It ordered the Ministry to reinstate the applicant and to pay her, within 15 days, compensation for unlawful dismissal in the amount of 17.401,57 convertible marks (“BAM”), together with default interest at the statutory rate, all work-related benefits and BAM 3.632,50 in respect of legal costs. The court held that the applicant was a civil servant and found that her dismissal had been unlawful under the provisions of the 2002 Civil Service Act.

Upon the appeal of the Ministry, on 27 February 2008 the Banja Luka District Court (“the District Court”) reversed the part of the Court of First Instance ’ s judgment which concerned work-related benefits and legal costs, while upholding the remainder.

On 15 December 2009 the Supreme Court of the Republika Srpska (“the Supreme Court”) accepted the Ministry ’ s appeal on points of law and overturned the judgments of 23 November 2007 and 27 February 2008. In so doing, it found that the lower courts had erred in law. The applicant was ordered to pay BAM 875 in respect of legal costs. As relevant to the case before the Court, its reasoning was as follows:

“The lower courts have wrongly concluded that in February 2004, when the plaintiff was dismissed, the 1994 Public Administration Act had not been in force in respect of public administration employees who did not have the status of civil servants ...

Section 127 of the 2002 Civil Service Act provides that following its entry into force, on 1 September 2002, the 1994 Public Administration Act ceased to be applicable to civil servants, but remained the relevant legislation for other categories of public administration staff...It is clear that the plaintiff had not been a civil servant. Therefore, the applicable legislation is the 1994 Act.

... Section 33 (3) of this Act prescribes that the suppression of an organisational unit of a public body automatically led to the suppression of all posts in that unit. Therefore, the decision to dismiss the plaintiff was lawful...It should also be noted that the Ministry had taken steps for the purpose of transferring redundant employees to some other posts in the Ministry. It is of no relevance that this had been done one day before the actual dismissal ...

... The 1994 Act is lex specialis in relation to the 2000 Labour Act...”

On 11 March 2010 the applicant appealed to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) alleging a violation of her rights guaranteed by Articles 6, 13 and 1 4 of the Convention and Article 1 of Protocol No. 1 to the Convention. She indicated that in the case of M.D., who had been the head of the Vlasenica Office, on 4 February 2010 the Supreme Court gave a decision in which it applied different law and accepted his claim.

On 22 January 2013 the applicant informed the Constitutional Court that on 13 November 2012 the Supreme Court gave a decision in the case of M.K., who, like herself had not been a civil servant, in which it applied the 2000 Labour Act and accepted the plaintiff ’ s claim (see below). The applicant sent a copy of that decision to the Constitutional Court.

On 25 April 2013 the Constitutional Court dismissed the applicant ’ s appeal as manifestly ill-founded. As regards the Supreme Court ’ s decision of 4 February 2010, the court noted that M.D. ’ s and the applicant ’ s case were not comparable as they did not concern the same legal and factual situation: M.D., unlike the applicant, had been a civil servant, and consequently, different law was applicable to his situation. However, the court made no comments about the Supreme Court ’ s decision of 13 November 2012 concerning M.K.

3. M.K. ’ s labour dispute

On 8 April 2004 M.K. filed a civil action against the Ministry seeking reinstatement, payment of outstanding salary and all work-related benefits.

On 18 November 2010 the Court of First Instance ruled in her favour. It ordered the Ministry to reinstate M.K. and to pay her, within 15 days, outstanding salary together with default interest at the statutory rate, all work-related benefits and legal costs. The court held that M.K. was not a civil servant and that accordingly the relevant law to be applied to the dispute in question was the 2000 Labour Act. The dismissal was unlawful because the Ministry had failed to act in accordance with the provisions of that Act concerning the redundancy programme.

Upon the appeal of the Ministry, on 31 March 2011 the District Court accepted the appeal and dismissed M.K. ’ s civil action. The court confirmed that M.K. had not been a civil servant, but held that the dispute was to be resolved under the 1994 Public Administration Act. It concluded that M.K. ’ s dismissal had been lawful in accordance with section 33(3) of the 1994 Act.

On 13 November 2012 the Supreme Court accepted M.K. ’ s appeal on points of law and reversed the District Court ’ s judgement. It dismissed the Ministry ’ s appeal and upheld the judgment of the Court of First Instance of 18 November 2010. As relevant to the case before the Court, its reasoning was as follows:

“The District Court erred in law.

At the time of the plaintiff ’ s dismissal, the 2002 Civil Service Act was in force. Section 125 thereof provides that the labour disputes of the public administration staff, who are not civil servants, are regulated by the 2000 Labour Act ... The plaintiff had not been a civil servant, as the lower courts correctly held.

Therefore, the first-instance court correctly concluded that in the present case the applicable law is the 2000 Labour Act ...

...

The plaintiff was dismissed because of the organisational changes in the structure of the Ministry for Refugees and Displaced Persons...In such a situation, the Ministry had to act in accordance with the relevant provisions of the 2000 Labour Act concerning the redundancy programme. Since the Ministry failed to do so ... the plaintiff ’ s dismissal was unlawful ...

The fact that the Ministry transferred a list of redundant workers to the Agency for Public Administration for the purpose of deploying them to different posts, does not make its actions legal as this was done only one day before the actual dismissal.”

B. Relevant domestic law and practice

Pursuant to section 32 (4) of the the 1994 Public Administration Act ( Zakon o radnim odnosima u državnim organima , Official Gazette of the Republika Srpska , “OG RS” nos. 11/94, 3/96, 6/97 and 96/03) , an employee who was made redundant because of organisational changes and who could not be transferred to another post would be dismissed. Section 33 (3) of this Act prescribed that the suppression of an organisational unit of a public body led automatically to the suppression of all posts in that unit.

The 2002 Civil Service Act ( Zakon o administrativnoj službi u upravi Republike Srpske , OG RS nos. 16/02, 62/02, 38/03, 49/06 and 20/07) entered into force on 1 September 2002. Section 123 of this Act provided that following its entry into force the 1994 Public Administration Act was no longer applicable to civil servants and other categories of public administration employees who did not have the status of civil servants. Pursuant to section 125 of this Act, labour disputes of public administration employees who were not civil servants were regulated by the 2000 Labour Act. The 2002 Act was partially repealed on 24 December 2008 by the 2008 Civil Service Act ( Zakon o republičkoj upravi , OG RS no. 118/08). However, the provisions relevant to the case before the Court remained in force.

Section 138 of the 2000 Labour Act ( Zakon o radu , OG RS nos. 38/00, 40/00, 47/02, 38/03, 66/03, 20/07 and 55/07), which was in force until 23 January 2016, provided that in case of redundancy dismissals an employer had to prepare a redundancy programme, in consultation with workers ’ council or a union, proposing requalification, deployment of a number of employees to another posts, redundancy payment and similar measures, at least 30 days before the planned dismissals (section 139 of the 2000 Act).

COMPLAINTS

Relying on Article 6 § 1 of the Convention, the applicant complains about the arbitrariness of the proceedings before the Supreme Court which rejected her claim for reasons which were not correct in law. She further alleges that such arbitrariness led to a violation of Article 1 of Protocol No.1 to the Convention. Lastly, relying on Article 13 the applicant complains that she did not have an effective domestic remedy for her substantive complaints.

QUESTION TO THE PARTIES

Was the judgment of the Supreme Court of the Republika Srpska of 15 December 2009 based on an Act which at the material time no longer applied to public administration employees? If so, has there been a violation of the applicant ’ s rights guaranteed by Articles 6 and 13 of the Convention and/or Article 1 of Protocol No. 1 to the Convention (see, as regards Article 6, mutatis mutandis, De Moor v. Belgium , 23 June 1994, Series A no. 292 A, and Barać and Others v. Montenegro , no. 47974/06, 13 December 2011)?